United States Court of Appeals
For the First Circuit
No. 17-1393
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ G. MARTÍNEZ-BENÍTEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Jóse Luis Novas-Debien for appellant.
Jonathan L. Gottfried, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, were on brief, for appellee.
January 24, 2019
THOMPSON, Circuit Judge. At stake today is whether
federal prosecutors proved José Martínez Benítez's prior Puerto
Rico-law conviction (described below) is a "controlled substance
offense" for federal-sentencing purposes. Concluding they did
not, we vacate his sentence and remand for resentencing consistent
with this opinion.
How Martínez's Case Got Here1
Martínez pled guilty in federal court to possessing a
firearm despite his status as a felon. See 18 U.S.C. § 922(g)(1).
His was a "straight plea," meaning he and the government did not
enter into any plea agreement. As for how things shook out at
sentencing, this is what you need to know.2
1 According to Spanish naming conventions, if a person has
two surnames, the first (which is the father's last name) is
primary and the second (which is the mother's maiden name) is
subordinate. Which is why we use "Martínez" for the rest of the
opinion.
2 First, though, a quick heads-up for the lay readers out
there: Sentencing under the federal sentencing guidelines starts
with the base offense level — i.e., a point score for a specified
offense or group of offenses. See, e.g., United States v. Serrano-
Mercado, 784 F.3d 838, 840 (1st Cir. 2015). The guidelines then
make adjustments for any aggravating or mitigating factors in the
defendant's case, thus arriving at a total offense level. See id.
The guidelines also assign points based on the defendant's criminal
history — points that get converted into various criminal history
categories, designated by Roman numerals I through VI. Id. Armed
with this info, the judge turns to the guidelines's sentencing
table. Id. And by plotting the defendant's total offense level
along the table's vertical axis and his criminal history category
along the table's horizontal axis, the judge ends up with an
advisory prison range. Id. From there, the judge sees if any
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The sentencing guidelines apply an enhanced base offense
level of 20 for firearm offenses preceded by one felony conviction
for a "controlled substance offense," see U.S.S.G.
§ 2K2.1(a)(4)(A) — a phrase that pertinently covers a state-law
crime, "punishable by imprisonment for a term exceeding one year,
that prohibits . . . the possession of a controlled substance . . .
with intent to . . . distribute," id. § 4B1.2(b); see also id.
§ 2K2.1 cmt. n.1 (referring the reader to § 4B1.2(b) and its
accompanying application note 1 for a definition of a "[c]ontrolled
substance offense").3 And the phrase covers as well "the offenses
of aiding and abetting, conspiring, and attempting to commit such
offenses." Id. § 4B1.2 cmt. n.1. Also of prime importance to the
present controversy, the government has "the burden of
establishing" by a preponderance of the evidence "that a prior
departures are called for, considers various sentencing factors,
and determines what sentence (whether within, above, or below the
suggested range) seems appropriate. See, e.g., United States v.
Dávila-González, 595 F.3d 42, 46 (1st Cir. 2010).
3No one argues that Puerto Rico is unlike a state for
§ 4B1.2(b) purposes. See generally United States v. Torres-Rosa,
209 F.3d 4, 8 (1st Cir. 2000) (concluding that "because the
[defendant] had not shown" that the guidelines "'meant to exclude
felony convictions in Puerto Rico Commonwealth Courts for
enhancement purposes,' no plain error inhered" (quoting United
States v. Morales-Diaz, 925 F.2d 535, 540 (1st Cir. 1991));
Morales-Diaz, 925 F.2d at 540 (rejecting the defendant's
unpreserved suggestion that "because Puerto Rico is not a state,"
the Puerto Rico conviction in play there was not a state-law
offense "under § 4B1.2" (internal quotation marks omitted)). So
we say no more about that subject.
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conviction qualifies as a predicate offense for sentencing
enhancement purposes." United States v. Dávila-Félix, 667 F.3d
47, 55 (1st Cir. 2011); United States v. Bryant, 571 F.3d 147, 153
(1st Cir. 2009).
From the documents presented by prosecutors at
sentencing, the district judge learned that years before his run-
in with the feds, Puerto Rico authorities had charged Martínez
with knowingly or intentionally possessing heroin with intent to
distribute, in violation of Puerto Rico's Controlled Substances
Act ("CSA"), see P.R. Laws Ann. tit. 24, § 2401 — a law commonly
called "Article 401." As relevant here, Article 401 criminalizes
the possession of certain controlled substances (including heroin)
with intent to "manufacture, distribute, dispense, transport or
conceal," see id. § 2401(a)(1), and calls for a "fixed" prison
"term" of 20 years, which may be increased to a 30-year "maximum"
term or decreased to a 10-year "minimum" term, if "aggravating" or
"extenuating" circumstances exist, see id. § 2401(b)(1)(A). We
have dealt with Article 401 before, for instance in an opinion
holding that "intent to conceal" is "a non-predicate offense" under
§ 4B1.2(b). See Dávila-Félix, 667 F.3d at 56 (concluding that
"concealment of a controlled substance" is "not commonly
considered [a] drug trafficking offense[]").
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Anyway, Martínez pled guilty to a "reclassified" charge
of "attempt[ing] or conspir[ing] to commit" an "offense" under
Puerto Rico's CSA, see P.R. Laws Ann. tit. 24, § 2406 — a provision
colloquially called "Article 406," the penalty for which "shall
not exceed" the penalty for the substantive "offense" that "was
the object of the attempt or conspiracy." By doing so, he avoided
a fixed mandatory 20-year prison term and made himself eligible
for a suspended sentence. See P.R. Laws Ann. tit. 34, § 1027; see
also P.R. Laws Ann. tit. 24, § 2414.4 And ultimately, the Puerto
Rico court gave him a 3-year suspended sentence —— a sentence that
has special significance as to the nature of the offense.
You should know too (because it affects the case's
outcome, for reasons explained presently) that Puerto Rico's CSA
4 The first statute authorizes the Puerto Rico "Court of First
Instance" to
suspend the effect of the sentence of imprisonment in
all cases of felonies . . . other than . . . [o]ne of
the following felonies under the [CSA]: § 2401
(prohibited acts); § 2405 (distribution to persons under
eighteen . . . years of age); § 2411 (employment of
minors); § 2411a (introduction of drugs to schools and
institutions), all of Title 24.
P.R. Laws Ann. tit. 34, § 1027(6). The second statute says that
"[t]he provisions on suspended sentence" are not "applicable to"
persons "convicted of violating §§ 2401(a), 2405, 2411 and 2411a
of this title when the distribution, sale, introduction,
dispensing or possession and transportation for the purpose of
distribution is involved, except in those cases in which the
provisions of §§ 1042 and 1043 of Title 34 are applicable." P.R.
Laws Ann. tit. 24, § 2414.
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bans not only possession-with-intent-to-distribute offenses
covered by Article 401, but also (among other things) simple-
possession offenses (i.e., offenses involving possession of drugs
not prescribed, with no intent to distribute), see P.R. Laws Ann.
tit. 24, § 2404 — a law widely referred to as "Article 404," which
outlaws the knowing or intentional possession of "any controlled
substance, unless such substance was obtained directly, or
pursuant to a valid prescription or order from a practitioner,
while acting in the course of his professional practice, or except
as authorized by this chapter." Article 404 calls for a "fixed"
3-year prison "term," which may be increased to a 5-year "maximum"
term or decreased to a 2-year "minimum" term, if "aggravating" or
"extenuating" circumstances exist. We are also no strangers to
Article 404 — just consider United States v. Román-Huertas, 848
F.3d 72 (1st Cir. 2017), which holds that an Article 404 "mere
possession offense[]" does not count as a qualifying predicate
under § 4B1.2(b). Id. at 77; see also United States v. Ramos-
González, 775 F.3d 483, 507 n.27 (1st Cir. 2015).
Kicking off the sentencing in the federal case, the
district judge noted that while the charging document in the Puerto
Rico case listed Martínez's crime as an Article 401 possession-
with-intent-to-distribute offense, the judgment showed that he had
pled to an Article 406 attempt-or-conspiracy offense. Then relying
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on a footnote in Puerto Rico v. Ramos Rivas, 2007 TSPR 138, 171
D.P.R. 826, 2007 WL 2079844, at *1 n.1 (P.R. 2007) — which says
that if an Article 401 charge is reclassified as an Article 406
offense, a court "must refer" back to Article 401 to determine the
proper "penalty" — the judge ruled that Martínez's Article 406
conviction was for an "attempted conspiracy to distribute
controlled substances."5 So the judge concluded that the Article
406 conviction amounted to a "controlled substance offense" under
the guidelines and increased Martínez's base offense level
accordingly — from 14 to 20, which helped set his recommended
guidelines range at 30 to 37 months. And when all was said and
done, the judge sentenced him to 34 months in prison.
Unhappy with this outcome, Martínez now appeals.
Jurisdiction and Standard of Review
The district judge had original jurisdiction under 18
U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C.
5 The Ramos Rivas footnote reads in relevant part:
[Article] 406 of the Puerto Rico Controlled Substances
Act . . . punishes the attempt or conspiracy to commit
any of the crimes defined in the act. The [article]
refers to base offenses, the attempt or conspiracy to
commit which gave rise to the sentence imposed.
Consequently, in this case we must refer to [Article]
401 . . . insofar as it concerns the penalty imposed.
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§ 1291. And we review the judge's legal analysis de novo, see
Dávila-Félix, 667 F.3d at 54, noting additional details as needed.
Summary of the Parties' Main Arguments
Attacking the district judge's work, Martínez contends
that none of the government-provided documents showed his Article
406 conviction was for attempt/conspiracy to possess heroin with
intent to distribute (with Article 401 being the object of the
attempt/conspiracy), rather than, say, attempt/conspiracy to
possess heroin without intent to distribute (with Article 404 being
the object of the attempt/conspiracy) — the first is a § 4B1.2-
qualifying predicate, he quickly reminds us; the second is not.
As for the judge's reliance on Ramos Rivas, Martínez claims that
this decision has zero relevance because (in his words) Ramos Rivas
does not hold that "all Article 406 convictions . . . reclassified
from Article 401 are drug trafficking offenses."
The government, contrastingly, argues that the district
judge got everything exactly right. Puerto Rico law, the
government writes, directs courts to "tie" a defendant's Article
406 attempt/conspiracy conviction to a substantive "base offense"
under Puerto Rico's CSA "to determine the fixed penalty" and then
to pick "a penalty not to exceed that maximum." To help with this
task, the government continues, Ramos Rivas requires courts to
"refer[] to the offense in the charging document[]" to discern the
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substantive offense underlying an Article 406 conviction "that
[was] reclassified from [another] charge[]." Putting these points
together, the government repeats that Martínez's plea resulted
from an Article 401 possession-with-intent-to-distribute charge
that got "reclassified to Article 406." And given the charging
document, the judge rightly ruled that Martínez's Article 406
guilty-plea conviction was "for attempting or conspiring to
possess" heroin "with intent to distribute" — or so the government
insists, noting too that Martínez's 3-year suspended sentence did
not "exceed" the pertinent 20-year maximum penalty in Article 401.
Ergo, the government concludes, the judge rightly found that
Martínez's conviction was a § 4B1.2-qualifying predicate.
As a fallback, the government contends that even if we
think Martínez pled guilty to attempting/conspiring to violate
Article 401 by means other than possessing heroin with distributive
intent — like, for example, by possessing heroin with intent to
conceal — we should still affirm his sentence. And that is
because, in the government's view, even though our Dávila-Félix
opinion says Article 401 "criminalizes actions . . . not commonly
considered drug trafficking offenses, such as concealment of a
controlled substance," see 667 F.3d at 56, a Puerto Rico Supreme
Court case predating Dávila-Félix — Puerto Rico v. Rosario Cintrón,
2 P.R. Offic. Trans. 107, 102 D.P.R. 82 (1974) — holds otherwise.
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Thus, according to the government, we as a panel must overrule
Dávila-Félix. Martínez, for his part, claims that the government
waived this argument by not raising it in the district court — a
contention the government disputes.
Our Take
To state the obvious, Martínez's federal sentence can
stand only if his Article 406 attempt/conspiracy conviction
constitutes a controlled substance offense under the guidelines —
an issue (we say again) that the government had the burden of
proving. See Dávila–Félix, 667 F.3d at 55. As the parties agree,
Article 406 covers separate crimes with separate elements — some
of which qualify as controlled substance offenses, like
attempt/conspiracy to possess heroin with distributive intent; and
others of which do not, like attempt/conspiracy to possess heroin
without distributive intent. See Román-Huertas, 848 F.3d at 77.
So, in legalese, Article 406 is a "divisible" statute. See Mathis
v. United States, 136 S. Ct. 2243, 2249 (2016). Which means we
must apply what is called the "modified categorical approach," a
procedure that lets judges look at a narrow set of documents from
a defendant's conviction — like "the indictment, jury
instructions, or plea agreement and colloquy" — to see what crime
he committed. Id. (citing Shepard v. United States, 544 U.S. 13,
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26 (2005), and Taylor v. United States, 495 U.S. 575, 602 (1990));
see also Román-Huertas, 848 F.3d at 77.
Back again then to the government-filed papers. The
charging document in Martínez's Puerto Rico case accused him of
possessing heroin with intent to distribute, in violation of
Article 401. And the sentencing document shows he later pled
guilty to an Article 406 attempt/conspiracy crime, reclassified
from the Article 401 charge. Unfortunately for us, however, the
documents do not say what he pled guilty to attempting/conspiring
to do: possessing heroin with intent to distribute (an Article
401 substantive offense), perhaps — a qualifying predicate under
§ 4B1.2; or perhaps possessing heroin without intent to distribute
(an Article 404 substantive offense) — a non-qualifying predicate
under § 4B1.2. And that failure devastates the government's theory
here, as we now explain.
The 3-year suspended sentence Martínez received is
certainly consistent with his having pled to attempting/conspiring
to possess heroin without distributive intent. But it is equally
consistent with his having pled to attempting/conspiring to
possess heroin with distributive intent. We say that because the
3-year suspended sentence does not exceed the pertinent maximum
penalties under Article 404 and Article 401. Remember: Article
404 calls for a "fixed" 3-year prison "term" for simple possession
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(which the court can raise to a 5-year "maximum" term or drop to
a 2-year "minimum" term, if "aggravating" or "extenuating" factors
exist). See P.R. Laws Ann. tit. 24, § 2404. And Article 401 calls
for a "fixed" prison "term" of 20 years for (among other things)
possession with intent to distribute (which the court can raise to
a 30-year "maximum" term or drop to a 10-year "minimum" term, if
"aggravating" or "extenuating" circumstances exist). See P.R.
Laws Ann. tit. 24, § 2401.
Hoping to get to the bottom of things, we asked the
government's lawyer at oral argument if a defendant charged with
an Article 401 possession-with-intent-to-distribute offense could
cop to an Article 404 simple-possession offense, which could then
serve as the substantive offense underlying an Article 406
attempt/conspiracy guilty-plea conviction. Yes, the lawyer said.6
Which makes sense given that "[d]efendants are frequently charged
for crimes different from those they are ultimately convicted of."
See United States v. Bravo-García, No. 16-1258, slip op. at 3 (1st
Cir. July 10, 2017) (judgment). And based on this truism, we have
6
Possession without distributive intent is a lesser-included
offense of possession with distributive intent — a point the
government does not dispute. See generally Ramos-González, 775
F.3d at 507 (mentioning how a "police complaint" accused a
defendant of possessing cocaine with distributive intent, "a
violation of Article 401," but the defendant later pled "guilty to
a [simple] possession crime" under "Article 404").
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said that a sentencing order "stating that [the defendant's]
Article 406 offense was 'reclassified' from Article 401, on its
own, . . . fails to justify a finding that [her] conviction is
actually under Article 401" instead of some other article. See
id., slip. op. at 2 n.3.
Seeking a way around these obstacles, the government's
attorney basically fell back on an argument made in his brief:
i.e., that because Martínez pled guilty to an Article 406
attempt/conspiracy crime, reclassified from an Article 401
possession-with-intent-to-distribute charge, then under Ramos
Rivas the Article 401 offense is considered the "object" of the
attempt or conspiracy — meaning, at least according to the
government, Martínez pled guilty to attempting/conspiring to
possess a controlled substance with intent to distribute, which
makes his Article 406 conviction a qualifying predicate offense
for a guidelines enhancement. But the government reads way too
much into Ramos Rivas.
Charged with violating Article 401 by possessing cocaine
with distributive intent, the Ramos Rivas defendant pled guilty to
infracting Article 406. See 2007 TSPR at ___, 171 D.P.R. at ___,
2007 WL 2079844, at *1. Noting that she had two prior Article 404
convictions, the lower court imposed a 20-year sentence under a
recidivist statute in Puerto Rico's Penal Code. Id. Displeased,
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the defendant argued on appeal that because her earlier convictions
were for violating Puerto Rico's CSA, the court should have instead
sentenced her under the less-onerous recidivist provision in
Article 401 of the CSA. See 2007 TSPR at ___, 171 D.P.R. at ___,
2007 WL 2079844, at *1-2.7 The Commonwealth's position was
essentially no harm, no foul because the sentence fell "within the
parameters" of Article 401's recidivist provision. See 2007 TSPR
at ___, 171 D.P.R. at ___, 2007 WL 2079844, at *7. Given the Ramos
Rivas parties' laser-like focus on Article 401 in framing the
issue, it makes perfect sense that the Puerto Rico Supreme Court
would say (in the now-much discussed footnote) that "in this case"
(meaning the Ramos Rivas case) one had to "refer to [Article] 401
. . . insofar as it concerns the penalty imposed." See 2007 TSPR
at ___, 171 D.P.R. at ___, 2007 WL 2079844, at *1 n.1 (emphasis
added).8
7 According to Ramos Rivas, the CSA
is a special law that provides that a certain type of
conduct (such as violating [Article] 401 of said act and
having two or more previous felony convictions under
this act) [triggers] the recidivism provision of this
law. In turn, the Penal Code contains a "generic"
recidivism provision under which it penalizes those who
have committed a felony and have two or more previous
felony convictions, regardless of the statute they
violated.
2007 TSPR at ___, 171 D.P.R. at ___, 2007 WL 2079844, at *7
(quotation marks omitted and second bracket in original).
8
For those wondering what happened to the Ramos Rivas
defendant: The Puerto Rico Supreme Court concluded that the
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Viewed against this backdrop, one thing is transparently
clear: Despite what the government suggests, Ramos Rivas did not
establish a general rule that if a defendant pleads guilty to an
Article 406 attempt/conspiracy violation following an Article 401
possession-with-intent-to-distribute charge, then it always means
he stands convicted of attempt/conspiracy to possess drugs with
distributive intent. Instead, Ramos Rivas is a narrow decision
holding that in the idiosyncratic circumstances of that case, one
had to look to Article 401 given the parties' apparent agreement
that Article 401 was the substantive offense underlying the Article
406 attempt/conspiracy conviction — and not some other article,
like Article 404. And that situation is worlds apart from
Martínez's. Which undercuts the government's Ramos Rivas-based
theory.
Still trying to convince us that "Martínez's Article 406
conviction was for the attempt/conspiracy to commit an Article 401
specific recidivist provision in Article 401 controlled over the
general recidivist provision in the Penal Code. 2007 TSPR at ___,
171 D.P.R. at ___, 2007 WL 2079844, at *7-8. And noting that a
"sentence imposed under" the Penal Code's recidivist provision "is
more onerous than a sentence imposed under the" CSA's recidivist
provision (because, for example, a sentence handed down under the
Penal Code's recidivist provision "does not qualify" a defendant
"to receive credits" for good conduct and the like), the high court
rejected the Commonwealth's no-harm-no-foul argument and remanded
for resentencing. See 2007 TSPR at ___, 171 D.P.R. at ___, 2007
WL 2079844, at *7-9.
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violation" — namely, possessing heroin with intent to distribute
— the government talks up two decisions by the Puerto Rico Circuit
Court of Appeals: Puerto Rico v. Ramírez Santiago, KLCE201701670,
2017 WL 6884475 (P.R. Cir. Nov. 29, 2017) (certified translation
provided by the government), and Puerto Rico v. Collazo Ortiz,
KLCE201700104, 2017 WL 1906428 (P.R. Cir. Mar. 30, 2017) (certified
translation provided by the government). In both cases, the
defendants stood accused of violating Article 401; the charges got
reclassified to Article 406 offenses, to which they pled guilty;
and the intermediate appellate court rejected their claims that
their sentences — 9 years in Ramírez Santiago, and 8 years in
Collazo Ortiz — were too stiff, noting how the time they received
did not exceed the 20-year fixed penalty in Article 401. As in
Ramos Rivas, none of the parties in Ramírez Santiago or Collazo
Ortiz disputed that Article 401 was the substantive offense
underlying the Article 406 attempt/conspiracy convictions. So
Ramírez Santiago and Collazo Ortiz are of no help to the
government.
And there is more that cuts against the government's
position. Responding to other questions at oral argument, the
government's lawyer also conceded that Martínez could have pled
guilty during the plea colloquy in the Puerto Rico case to an
Article 404 simple-possession offense, which could then serve as
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the substantive crime behind the Article 406 attempt/conspiracy
conviction — even if Article 404 was not mentioned in the judgment
of conviction. Given how Article 404 is not a "controlled
substance offense" for guidelines purposes, see Román-Huertas, 848
F.3d at 77, the government's concession is fatal to its defense of
the judge's work.
Perhaps sensing the difficulties in his position, the
government's attorney added that while the plea colloquy might
"clarify" what Martínez pled to, it also might not — we do not
know, because prosecutors did not provide the plea-colloquy
transcript at his federal-sentencing hearing. But this goes to
show only that the government has not met its burden of proving
exactly what the substantive crime undergirding Martínez's Article
406 conviction was.
That leaves one matter the government presents on appeal
— that we as a panel should use the Puerto Rico Supreme Court's
opinion in Rosario Cintrón to overrule language in our Dávila-
Félix opinion that Article 401 "criminalizes actions . . . not
commonly considered drug trafficking offenses, such as concealment
of a controlled substance." Assuming without deciding that the
government preserved the claim, given how the government-filed
papers leave up in the air what offense Martínez pled guilty to
attempting/conspiring to commit — simple possession under Article
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404 is a possibility, as the government's lawyer confirmed at oral
argument — we have no need to resolve the government's fallback
Article 401 argument today.
Final Words
To hammer the key point of our opinion home: The 3-year
suspended sentence Martínez got for his Puerto Rico drug conviction
is at least equally consistent with his having pled to
attempting/conspiring to commit simple drug possession (which,
don't forget, is not a "controlled substance offense" under the
guidelines). And prosecutors never introduced the Puerto Rico
plea colloquy to show that simple possession was not (in Article
406 lingo) "the object of the attempt or conspiracy." So ours is
a fact-specific holding, declaring that the government — in the
particular circumstances presented here — failed to shoulder its
burden of showing what Martínez pled to, which requires us to
vacate his sentence and remand for resentencing. We add a caveat,
however. The government had every incentive — and opportunity —
to present sufficient proof to support its requested "controlled
substance offense" enhancement. But it did not do so, as we have
seen. Thus the government may not present new evidence of
Martínez's prior conviction at resentencing. See, e.g., Román-
Huertas, 848 F.3d at 78.
VACATED AND REMANDED, WITH INSTRUCTIONS.
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